PER:

Charanjit Singh, President

1        The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 34, 35 and 36 against the opposite parties on the allegations that the complainant has purchased one tyre No. 15 from the shop of opposite party No. 1 on 10.6.2022 for a sum of Rs. 4,800/-  (including G.S.T, S.G.S.T Tax) and at that time the opposite party No. 1 assured to the complainant that the above said tyre will run 60,000/- Kilometer. On 12.6.2022 the complainant was going to Amritsar and during that period the above said tyre has damaged/ blast after running about 60 Kilometers and after that the complainant approached to the shop of opposite party No. 1 and stated to the opposite party No. 1 that the above said tyre has blasted / damaged after running about 60 Kilometers, whereas the opposite party No. 1 assured to the complainant that he will send the same to the opposite party No. 2 but after that the opposite party No. 1 refused to the request of the complainant. After that the complainant number of times approached to the opposite party No. 1 with request to exchange the said tyre, but the opposite party No.1 always linger on the matter under one pretext or the other and now the opposite party No. 1 flatly refused to exchange the above said tyre.  The opposite parties have intentionally prolonged/ in-ordinarily delayed, refused, disbursement of exchange the said tyre of the complainant, putting in mental agony, depression, harassing and teasing to the complainant. The complainant has prayed that the opposite parties may be directed to return the amount of Rs. 4,800/- (amount of tyre) to the complainant and opposite parties may be directed to pay the compensation amount of Rs. 50,000/- to the complainant for unnecessarily harassment. Alongwith the complainant, the complainant has placed on record his affidavit Ex. C-1, Adhar Card Ex. C-2, Bill dated 10.6.2022 Ex. C-3.

2        Notice of this complaint was sent to the opposite parties and opposite parties appeared through counsel and opposite party No. 1 filed written version by interalia pleadings that the complaint filed by the complainant is not maintainable either in law, facts and circumstances of case and is liable to be dismissed in liminie. The complainant has suppressed, distorted and concealed vital and material facts germane to the issue. The present complaint is not maintainable since the defective tyre has not been got inspected from the approved laboratory by complainant as required under Section 38(2) (d) of the Consumer Protect Act, 2019. The opposite parties cannot be held liable unless there is manufacturing defect in the tyre i.e. due to usage of defective material/ faulty workmanship. The complainant by his own act and conduct is legally estopped from filing the present complaint. The tyre being a rubber product, can be damaged for any other reason other than manufacturing defect. The life/ performance of the tyre depends upon many facts like air pressure, Driving habits, road conditions, load, carried by the vehicle, mechanical condition, irregularities of the vehicle, proper maintenance, speed, nature of the terrain i.e. level of ground, hilly or winding roads, the season of the year when the tyre was used, position of tyre on vehicle, inflation/ pressure and the external object with which the tyre may come in contract while in motion etc. It may be case that the tyre in question might have been suffered due to any one or more of these eventualities. There is no manufacturing defect in the tyre in question and as such there is no any deficiency or negligence in service or unfair trade practice on the part of the opposite parties. The Opposite Party No.1 had neither given any performance guarantee/warranty/assurance regarding tyre to the Complainant nor authorized any person to give any guarantee/warranty/assurance in this regard. The guarantee/warrantee, if any, is only regarding manufacturing defects in the tyre. It is the normal practice of this Opposite parties, in case of any complaint tyre being received, the same is being inspected by trained technical service personnel, in order to assess the problem in the complaint tyre, and said technical personnel shall give an "Inspection Report" as the outcome of such inspection done, spelling out the actual cause of such damage/defect, if any; and it is only when such tyre suffers from Manufacturing Defect, the opposite parties shall be held liable or responsible, and not otherwise. The opposite party No.1 never lingered on the matter under one or other pretext as alleged. The tyre bearing Serial No.3521 was sent for examination to the Company Soon after the receipt of the said tyre notification NO 905193451 dated 16.06.2022 was issued and the said tyre was thoroughly inspected by the Company's Technical Service Personnel Mr Sushil Kumar- His examination revealed that the said tyre was damaged due to Run flat due to usage of the tyre after neglecting the injury caused by cuts. Tyre run under low inflation/No inflation. This is not due to any manufacturing defect of the tyre. The above conclusion was reached only after subjecting the said tyre to a thorough and detailed examination The inspection report dt 18.06.2022 sent to Mr Manmeet Singh Necessary instruction was given to Mr Manmeet Singh to collect the tyre from the opposite party No.1 and the said tyre has been duly received by the complainant from the opposite party No.1 being satisfied and having no any complaint in the matter. The tyre mentioned in the complaint is of a true and merchantable quality absolutely free from any manufacturing defect. The damage of Run flat in a tyre is caused due to running of the vehicle after total air loss due to puncture/cut/rim damage or valve stem leakage. This type of complaint of the tyre can be avoided as by the vehicle users maintaining the checks on inflation pressure as per the recommendation of the vehicle manufacturer and by stop driving the vehicle as soon as the air loss is detected. It is evident from the nature of the complaint that the complainant had not stopped driving the vehicle even after knowing the air loss to the tyre. Due to such negligent act and conduct on the part of the complainant resulted in causing damage to the tyre in question. As such for such negligent act and conduct of the complainant, the opposite parties cannot be held liable. Infact the complainant has failed to drive the vehicle cautiously and due to sheer negligence on the part of the complainant resulted in the damage to the tyre in question. The Opposite party Company manufactures the largest range of tyres in India and enjoys the highest brand preference for superior quality, appearance and long life. The tyres/tubes manufactured by the company adhere to strict standard of quality and is free from any manufacturing defect. The opposite party No. 1 has denied the other contents of the complaint and prayed for dismissal of the same. Alongwith the written version, the opposite party No. 1 has placed on record affidavit of Rajat Gupta Ex.  OP1/1.

3        The opposite parties No. 2 and 3 have filed a separate written version by interalia pleadings that the complaint filed by the complainant is not maintainable either in law, facts and circumstances of case and is liable to be dismissed in liminie. The complainant has suppressed, distorted and concealed vital and material facts germane to the issue. The present complaint is not maintainable since the defective tyre has not been got inspected from the approved laboratory by complainant as required under Section 38(2) (d) of the Consumer Protect Act, 2019. The complainant is legally estopped from filing the present complaint by his own act and conducts. The tyre being a rubber product, can be damaged for any other reason other than manufacturing defect. The life/ performance of the tyre depends upon many facts like air pressure, Driving habits, road conditions, load, carried by the vehicle, mechanical condition, irregularities of the vehicle, proper maintenance, speed, nature of the terrain i.e. level of ground, hilly or winding roads, the season of the year when the tyre was used, position of tyre on vehicle, inflation/ pressure and the external object with which the tyre may come in contract while in motion etc. It may be case that the tyre in question might have been suffered due to any one or more of these eventualities. There is no manufacturing defect in the tyre in question and as such there is no any deficiency or negligence in service or unfair trade practice on the part of the opposite parties, so the complaint is liable to be dismissed. The opposite parties had neither given any performance/ guarantee/ assurance regarding tyres to the complainant nor authorized any person to give any guarantee/ warranty / assurance in this regard. The guarantee/ warrantee, if any, is only regarding the manufacturing defect in the tyres. The opposite parties are not aware of the circumstances, in which the subject tyre was brought for inspection. With regard to the other allegations, these opposite parties submits that the tyre of size 185/65R15 88H ZTX A1 TL bearing Serial NO. 3521 was received for examination from M/s Gupta Tyre World on 16.6.2022. Soon, after the receipt of the said tyre notification No. 905193451 dated 16.6.2022 was raised and the said tyre was thoroughly inspected by these opposite parties Technical Service Personnel Mr. Sushil Kumar who has under gone intense training in evaluation of tyres. The claim forwarding Doctor dated 14.6.2022 is Ex. OP 2/3. His examination revealed that the said tyre was damaged due to Run Flat caused due to usage of the tyre after neglecting the injury caused by cuts, tyre run under low inflation/ No inflation. The inspection report dated 18.6.2022 is Ex. OP2/4. The inspection report dated 18.6.2022 sent to Mr. Manmeet Singh on 18.6.2022. Necessary instructions were given to collect the tyre from M/s Gupta Tyre World the subject tyre was handed over to the complainant by the opposite partyNo.1  on 20.6.2022. The type mentioned in the complaint is of a true and merchantable quality absolutely free from any manufacturing defect.  The Opposite Parties Company manufactures the largest range of tyres in India and enjoys the highest brand preference for superior quality appearance and long life. The tyres/ tubes manufactured by us adhere to strict standard of quality and is free from any manufacturing defect. Being the case, all allegations made to the contrary in the complaint are hereby denied.  A damage of "Run flat" in a tyre is caused due to running of the vehicle after total air loss due to puncture/cut/rim damage or valve stem leakage. This type of complaint to the tyre can be avoided as follows:

a.       By the vehicle users maintaining the checks on inflation pressure as per the recommendation of the vehicle manufacturer

b.       Stop driving the vehicle as soon as the air loss is detected

It is evident from the nature of the complaint that the complainant had not stopped driving the vehicle even after knowing the air loss to the tyre. Due to the sheer negligent action on the part of the Complainant has resulted in causing damage to the tyre. For the negligent action of the person who had driven the vehicle, this opposite party cannot be made liable. Further tyre being a rubber product it cannot be made full proof against damages caused due to impact of puncture/cut/rim damage or valve stem leakage while the vehicle is in motion. As mentioned above the Complainant has failed to drive the vehicle cautiously and due the sheer negligence on the part of the Complainant resulted in the damage to the tyres. The Opposite Party Company's liability arises only when the product is having manufacturing defects, i.e. due to usage of defective material/faulty workmanship. This Opposite Party Company is not liable if the product is damaged due to misuse, negligence, improper or inadequate maintenance or accident, normal wear and tear. The opposite parties are not liable for the consequential loss or indirect loss. The complainant has no right to demand damages or compensation for any accrued losses.  The opposite parties No. 2 and 3 have denied the other contents of the complaint and prayed for dismissal of the same. Alongwith the written version, the opposite parties No. 2 and 3 have placed on record affidavit of Jatin Kamra Ex. OP2/1, Self attested copy of Power of attorney Ex. OP2/2, Self attested copy of claim forwarding docket Ex. OP2/3, Self attested copy of inspection report/rejection advice Ex. OP2/4. 

4        The complainant has filed rejoinders to the written versions filed by the opposite party No. 1 and opposite parties No. 2 and 3 and controverted all the facts as taken in the written statement and reiterated the stand taken as taken in the complaint.

5        We have heard the Ld. counsels for the parties and have carefully gone through the record.

6        In the present case, it is not disputed that on 10.6.2022 the complainant has purchased a tyre of his car from the opposite party No. 1 for Rs. 4,800/- vide invoice Ex. C-3. According to complainant, at the time of  purchasing the tyre in question, the opposite party No. 1 has assured the complainant that the tyre in question will run 60,000/-,  but on 12.6.2022 i.e. after two days the tyre in question blast/ damaged after running only 60 Kilometers. The complainant requested the opposite parties to exchange the tyre or to return the amount of tyre. On the other hands, the stand of the opposite parties is that the tyre bearing Serial No.3521 was sent for examination to the Company soon after the receipt of the said tyre notification No 905193451 dated 16.06.2022 was issued and the said tyre was thoroughly inspected by the Company's Technical Service Personnel Mr Sushil Kumar- His examination revealed that the said tyre was damaged due to Run flat due to usage of the tyre after neglecting the injury caused by cuts. Tyre run under low inflation/No inflation. This is not due to any manufacturing defect of the tyre. The above conclusion was reached only after subjecting the said tyre to a thorough and detailed examination The inspection report dt 18.06.2022 sent to Mr Manmeet Singh Necessary instruction was given to Mr Manmeet Singh to collect the tyre from the opposite party No.1 and the said tyre has been duly received by the complainant from the opposite party No.1 being satisfied and having no any complaint in the matter. The opposite parties NO. 2 and 3 have placed on record inspection report Ex. OP2/4. The whole of the case of the opposite party revolves around the inspection report Ex. OP2/4. But the opposite parties have not placed on record affidavit of investigator to prove the inspection report Ex. OP2/4. Reliance in this connection has Manikant Vs. New India Assurance Co.Ltd. 1(2012) CPJ 88 (NC) of the Hon’ble National Commission wherein it has been held that the surveyor did not appear in court and subject himself to cross examination nor was any affidavit filed by him to prove his report . Producing a document in court does not by itself constitute proving the document. It has to be backed by credible evidence. In the instant case, no evidence was led to prove the surveyor’s report in the absence of which the surveyor’s report has little evidentiary value

7        The expression ‘deficiency’ of services is defined under Section 2 (1) (g) of the Consumer Protection Act, 1986 [Now Section 2(11) of the Consumer Protection Act, 2019], which is reproduced as under: “

(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

 The quality, standard, purity and potency of the goods have to be considered in the light of definition of the word, “defect”, as given in Section 2 (1) (f) of Consumer Protection Act, 1986 [now Section 2 (10) of the Consumer Protection Act, 2019], which is reproduced as under:

“(f) "defect" means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods.”

On perusal of above provisions of the Act, it is clear that “defect” means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard, which is required to be maintained by or under any law for the time being in force. Keeping in view the above credentials, the ‘defect’ is to be ascertained and if such a defect occurs in a brand new product, then the onus is upon the manufacturer to prove that it is free from any defect and the defect in the same was not a manufacturing one. The OPs have failed to prove that the defect in the product was not a manufacturing defect.

8        It is admitted fact that the complainant approached to the opposite parties regarding the problem in the tyre in question within one week from the purchase of tyre. Moreover, the record shows that the complainant has purchased the tyre in question on 10.6.2022 and  according to complainant, the tyre was damaged/ blast on 12.6.2022 just within two days and immediately, the complainant made the complaint to the opposite parties. It all shows that there is some inherit defect in the tyre in question. The perusal of record shows that defect in the product in question occurred in a very short period. In this regard, Hon’ble Delhi State Commission, New Delhi in case titled as Jugnu Dhillon Vs. Reliance Digital Retail Limited 11(2014) CPJ page 17 has held that

“failure of compressor within 2-3 months of its purchase itself amounts to manufacturing defects- when any company stopped manufacturing particular model under these circumstances only way left is to refund of money alongwith interest- Product found to be defective at the very outset- It is always better to order for refund of amount.”

Hon’ble Supreme Court in case titled Hindustan Motors Limited and Anr. Vs. N.Shiva Kumar and Anr. (2000) 10 Supreme Court Cases, 654 has held that

 “when any company had stopped manufacturing the particular model, under those circumstances, there is no other way except to refund of money alongwith interest, compensation and cost.”

 In the instant case, the tyre in question started giving troubles within warranty period. In this regard, Hon’ble National Commission, New Delhi in  case Shirish Vs. C.S.Rahalkar (Dr) in 2010(3) CLT page 209 has held that 

“the respondent had paid Rs.32,500/- for an original Amtrex air –conditioner and not an assembled air-conditioner. The State Commission has rightly held the petitioner guilty of Unfair Trade Practice as defined under section 2(1) (i) ® of the Consumer Protection Act and consequently, directed the petitioner to compensate the respondent for the same.”

9        During the course of arguments, Ld. counsel for the opposite party has placed on record citations 2017(3) CPR 259 (NC) titled Ajay Kumar Vs Anand Automobiles and Anr., 2017(3) CPR 224 (NC) titled Baljit Kaur Vs Divine Motors and Anr and argued that when a manufacturing defect is alleged onus of proof has to be on complainant. This is a case of Res Ispa Loquitur where the defect itself proves that the tyre was not in perfect condition to run. Therefore, in such like cases there is no need to prove manufacturing defect in the tyre of complainant.  Moeover in the instant case, as discussed above the tyre in question has been blasted within short span of time i.e. within two days therefore, from the circumstances  of the present case, it shows that there is some defect in the tyre. Moreover the opposite party has relied upon inspection report but the said report has not been duly proved by the affidavit of investigator and stand of the opposite party has not been duly proved. Further more, the tyre in question has been blast just running 60 Kilometer after only two days , therefore, the complainant has lost his faith in opposite parties and he is entitled for the refund.

10      In view of above discussion, the present complaint is allowed and the opposite parties are directed to refund Rs. 4,800/- i.e. price of the tyre in question to the complainant. On receiving the above amount, the complainant will hand over the tyre in question to the opposite parties. The complainant is also entitled to Rs. 5,000/- as compensation on account of harassment and mental agony and Rs. 5,000/- as litigation expenses from the opposite parties. Opposite Parties are directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @9% per annum, on the awarded amount from the date of complaint till its realisation. Copy of order be supplied to the parties free of costs as per rules. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission. File be consigned to record room.

Announced in Open Commission

8.11.2023